Mitchell v. Smith

1 Binn. 110, 1804 Pa. LEXIS 45

• Court: Supreme Court of Pennsylvania
• Decided: September 13, 1804
• Status: Published

Opinion

On this day the judges delivered their opinions.

Shippen C. J.

This is a writ of error to reverse a judgment rendered in the court of Common Pleas for the county of Luzerne, in an action brought on a bill obligatory for the sum of four hundred and eighty three dollars and thirty three cents; to which the defendant pleaded payment, with leave to give special matters in evidence.

It appears on the record that the consideration for this bill was a tract of land conveyed by the plaintiff to the defendant, lying without the seventeen townships, in the county of Luzerne, and held by him under a deed from a committee of the Susquehanna company, under the Connecticut tide, and not derived from the authority of this commonwealth, or of the late proprietaries of Pennsylvania before the revolution. The principal question in the case is whether this be a legal or illegal, consideration for the bill, and whether the contract for the sale and purchase of this land is a violation of the laws of this commonwealth, so tainting the whole transaction, as that this court cannot legally afford their aid to carry the contract into execution.

The mischiefs intended to be remedied by the act of 11th April 1795, were of a grievous nature. A warfare had been carried on between the claimants of land under the title of Connecticut, and the claimants under Pennsylvania for many years, and many lives had been lost in the contest. It was at length found necessary for congress to interpose. They thought lit to appoint judges or commissioners to decide upon the claims of the respective states, who after a full and solemn hearing made their decree at Trenton, establishing the right of government over the country in question to be in Pennsylvania, but without deciding the particular titles of individuals claiming the right of soil. Notwithstanding this decree, not only the old settlers under the title of Connecticut retained their possessions, but a great number of new persons under the same pretended title intruded into this part of Pennsylvania, and possessed themselves of, and settled, such vacant lands as they chose.

The legislature of Pennsylvania passed repeated acts of Assembly to remedy the evils consequent upon such intrusions, some of them with a view to compromise with the first settlers. All however proved ineffectual to prevent new illegal settlements. At length the act in question %vas passed, called the Intrusion Law. This act is of a public nature, and intended to remedy a public evil. The point relied upon by the plaintiff Is that the land sold by the plaintiff and purchased by the defendant, was fairly bought and sold, all the circumstances being fully known to both parties, and carried into execution on the part of the defendant, by his taking possession and occupying the land; and that although the act of Assembly imposes a penalty on the party offending, yet it no where invalidates the contract. On the part of the defendant it is contended that the contract which was the foundation of this obligation, having been made in violation of the good policy and direct provisions of the act of Assembly, this court will not afford their aid to carry such a contract into execution.

What then was the contract? It appears to be a contract for selling and conveying a tract of land which the plaintiff held under a deed from the committee of the Susquehanna company, or in other words under a Connecticut title. What says the law? “ If any person shall enter into possession of, or shall “ combine or conspire for the purpose of conveying, possessing, “ or settling on any lands within the ascertained limits, under “ colour of any half share right or pretended title not derived “ under the government, he shall forfeit,” &c. Is not the actual conveying, possessing, and settling this land direct evidence of combining for that purpose, and of course a direct violation of the law? But it is objected that where a law creates a new offence and prescribes a specified mode of punishment, no other mode can be pursued. This is generally true where the act contains no prohibitory clause; in which case the common law punishment by indictment might be inflicted, although the punishment directed by the act was by bill, plaint, or information. Here indeed there is no general prohibitory clause, the act directing only that if any person shall do so and so, he shall be punished so and so. Is this however a case involving a double punishment by prosecution? All that is contended foils that the contract is illegal, being founded on a breach of the law, and of consequence a void contract, and cannot be enforced in a court of law. And for this purpose there cannot be a more'' exPress authority than the case in Carth. 252. where Lord Chief Justice Holt says, “ that every contract made by or about « a matter or thing which is prohibited, and made unlawful by “ any statute, is a void contract, though the statute itself doth “ not mention that it shall be so, but only inflicts a penalty on “ the offender; because a penalty implies a prohibition, though “ there are no prohibitory words in the statute.” This authority, although perhaps it might not warrant a conclusion that a penalty implies a prohibition for the purpose of making the offence punishable by indictment, in case the law had prescribed another and a specific punishment for the offence, yet it certainly is an authority to prove that a contract about a matter prohibited by statute is unlawful and a void contract, although the act does not expressly say so, and that a penalty implies a prohibition, so as to make the contract void. The spirit of this law in Carthew has been followed up in numerous modern cases, particularly where goods have been purchased abroad with an intent to smuggle them into England. In these cases the seller of the goods, although a foreigner residing in a foreign country, cannot recover the price of his goods in England, if he were any way concerned in the smuggling transaction; the whole contract being tainted and nullified by the illegal act, so as to prevent the recovery of the debt in the country whose laws were violated.

I would barely add, that if we could enforce the payment of the consideration money for this land, we must likewise have been obliged on the other hand to enforce the delivery of the possession, in case the money had been paid and possession refused, which clearly would have been a most glaring infraction of the law; the remedies must be mutual or not at all.

This subject has been lately canvassed ,in this court, in the c-ase of Maybin v. Coulon, where we were compelled to resist the payment of an otherwise honest demand, on account of its being founded on, and connected with a breach of the laws of trade, in covering the property of a foreigner by using the name of a citizen of the United States, in obtaining the regis,ter of a ship.

For these reasons I am of opinion the judgment below must be reversed.

Ye ates J.

Whether this case be considered on principle or precedent, I am of opinion that the judgment of the Common Pleas cannot be supported.

Courts of justice sit to carry into execution dispassionately the general will of the community disclosed by the laws. It would seem a solecism in jurisprudence that a contract which necessarily leads to defeat the provisions of an act of the legislature, of the highest public concernment, should receive judicial sanction and support. The single bill on which the action is founded is dated 11th March 1796, and therefore the laws in force at that time only, can affect our determination. The intrusion act was passed on the 11th April 1795. [His Honour here recited the first two sections.]

The bill of exceptions states that a deed bearing equal date with the single bill, was executed by the defendant in error to the plaintiff for 1500 acres of land, in Smithjield to wnship in the county of Luzerne, which the former claimed by a grant of the committee of the Susquehanna company, out of the seventeen townships; that both parties went together to view the lands previous to the execution of the bill or deed, and that the plaintiff in error was put in possession, and continued therein since the time of the contract.

It is evident therefore that the agreement was entered into, in direct violation of the intrusion act, for the purpose of conveying, possessing, and settling the lands interdicted, under a haf share right or pretended title not derived from the authority of this commonwealth, or of the late proprietaries. It openly attacked the sovereignty of the state, over a considerable part of the lands clearly comprised within her chartered limits.

In Booth et al. v. Hodgson et al. 6 T. R. 409. Lord Chief Justice Kenyon observes, that “ it is a maxim in our law, that “ the plaintiff must shew that he stands on a fair ground, when “ he calls on a court of justice to administer relief to him.” And in Jaques v. Withey and Reid, 1 H. Bl. 67. it is said by counsel, and seemingly assented to by the court, that “ where an “ action is in affirmance of an illegal contract, and the object of “ it is to enforce the performance of an engagement prohibited “ by law, clearly such an action was in no case to be main- “ tained.” And Lord Chief Justice Ellenborough in the late case of Edgar et al. v. Fowler in 1803, has said, “We will not “ assist an illegal transaction in any respect; we leave the matter “ as we find it, and then the maxim applies, melior cst conditio P 3 East 225. Abroad ground is laid down by Lord Chief Justice Holt in Bartlett v. Vinor, Carth. 252. in these words: “ Every contract made for or about any matter or “ thing, which is prohibited and made unlawful by any statute “ is a void contract, though the statute itself doth not mention “ that it shall be so, but only inflicts a penalty on the offender; “ because a penalty implies a prohibition, though there are no “ prohibitory words in the statute.” If the law is correctly laid down in these authorities, I run little hazard in asserting that the suit of the plaintiff in the Common Pleas cannot be supported.

It cannot be denied that contracts which violate the rules of decency or morality, or oppose principles of sound policy of the country are illegal and void. The cases cited on the part of the plaintiff in error fully prove the positions.

So also of contracts which immediately tend to defeat the legislative provisions for the security and peace of the community though not made void by statutes. Thus in Biggs v. Lawrence, 3 T. R. 454. a contract for goods to be smuggled into England ivas held invalid; and it is there said that one who seeks redress in a court of law must not shew that he broke the laws of his country. In Clugas v. Penaluna, 4 T.R. 466. it was resolved that an inhabitant of Guernsey cannot recover in England for goods sold there, if intended to be smuggled into England. It was held immoral to evade the laws of the country, though the act was done in Guernsey, and though the contract might be legal in Guernsey and enforced there. In Waymell v. Reed et al. 1 T. R. 599. a vendor of goods abroad shall not recover the value of goods packed up in order to be smuggled into England; for even foreigners shall not be allowed to subvert the revenue laws. In Mitchell et al. v. Cockburne, 2 H. Bl. 379., A. and B. were engaged in a partnership in insuring ships fkc. which was carried on in the name of A., and A. paid the whole of the losses; such a partnership being illegal by the statute of 6 Geo. 1. c. 18. A. could not maintain an action against B. to recover a share of the money that had been so paid; because no contract arising directly out of such an illegal proceeding could be the foundation of an action. In the case before cited, Booth et al. v. Hodgson, 6 T. R. 405. A. B. and C. became partners in insuring ships contrary to the said statute of 6 G. 1. c. 18. sec. 12. but it was agreed that the policies should be underwritten in the name of A. only. Several policies were effected, and the premiums received by C. and D., and it was held that A. could not recover against C. and D. And' in Camden v. Anderson, 6 T. R. 730. a policy effected in, contravention of a statute made for the purpose of protecting the monopoly granted to the East India company was held void. Courts will not enforce contracts injurious to and against the public good. Per Ch. Justice, 2 Wils. 348. Many contracts which are not against morality are still void as being against the maxims of sound policy. Per Lord Mansfield,, Cowp. 39.; and again in the same book p. 343. his lordship uses the following expressions: “ The objection that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake however that the objection is ever allowed; but it is founded in general principles of policy which the defendant has the advantage of, contrary to the real justice as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this, ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act, if from the plaintiff’s own stating or otherwise. If the cause of action appears to arise ex turpi causa or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon this ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. Where both are equally in the wrong, potior est conditio defendentis.” These observations afford a decisive answer to part of the ingenious arguments of the defendant’s counsel.

But it has been further objected that most if not all of the cases relied on, either respect offences prohibited at common law, or such as had been theretofore created by statute, and particularly smuggling transactions, which the courts were extremely jealous of, as they defrauded the royal revenue.

It was said that the act of 6th April 1802 (5 St. Laws 198.) Was made to supply the very deficiency which existed before, and which was now attempted tobe supplied by a judicial decision; for sec. 4th vacates such contracts as the present, and the act did not take effect till the 1st May 1802.

I answer that it would be no great stride, in mv idea, to .maintain that after the decree at Trenton, the sales of titles within limits of Pennsylvania, under the grants of a sister state not recognised by our laws, would be indictable on the principles of the common law. Such acts are immediate attacks on the sovereignty of this state, tend to violences of the most alarming nature, and are public evil examples. But supposing it to be otherwise, and that the authorities in the English books related merely to smuggling transactions, (though the fact is contrary,) I take it that the same grounds of decision which influenced the courts in England to determine such contracts to be invalid, would equally operate on our minds to declare the same as to agreements which intimately affect the public peace and national prosperity. In both cases the subject matter is of great magnitude. The public revenue is endangered and affected. Individuals are defrauded. Why should we not be as tenacious as British judges in instances of public revenue being defrauded, tending to infractions of the peace, and where the very acts of contracting are express denials of the right of the people over a large portion of the state ? It was candidly admitted during the argument that the deed, of which the single bill in question was the consideration, vested no right or interest whatever in the grantee.

I will only add, that the subject of a contract ought to be such a thing as men have a lawful right and power of stipulating about, at pleasure. 1 Pow. Cont. 164. The law, by forbidding an act, takes from the contractor the power of obliging himself to do it, and consequently prevents the person contracting from gaining any right- of requiring it to be done. Id. 165. A contract or agreement is unlawful if it be to encourage unlawful acts or omissions. Id. 195. On the whole, I am of opinion that the judgment in the Common Pleas be reversed.

Smith J. concurred, and assigned his reasons.

Brackenuidgi; J.

The consideration of the bill in question is the giving possession and the sale of a tract of land under a title derived from what is called the Susquehanna company. This claim is founded on the principle that the land is without the charter boundary of Pennsylvania. Hence it is adverse to the claim of this state both as to soil and jurisdiction. It is true the mouth of the claimant paramount, the state of Connecticut. from whom the company derive their claim, is shut bya decision. But this does not conclude the possessor as to right of soil, nor in fact will it conclude his exertions as to jurisdiction. The very object of the sale is to induce settlers, and increase strength to support vexatiously the claim in the courts of the United States, or by force independent of law. Shall the courts of the state be called upon to enforce contracts and assist combinations against herself? Exercising jurisdiction, the state is bound to preserve the peace and aid contracts, but not such as militate against her own rights. It would be unnatural, and against reason, which is a ground of the common law. It is against public policy. Self preservation forbids it. So that independent of any act of the legislature I must hold the transfer illegal, and the obligation given under such consideration void.

Judgment reversed.